RICHMOND (March 25, 2019) – Attorney General Mark R. Herring today joined 22 attorneys general in filing an amicus brief asking the court to maintain the current nationwide preliminary injunction stopping the Trump Administration from implementing new regulations rolling back the Affordable Care Act’s requirement that employers include birth coverage control in their health insurance plans, while litigation around the regulations is ongoing.
The amicus brief, filed today in the Third Circuit Court of Appeals, supports the states of Pennsylvania and New Jersey in their efforts to fight the Trump Administration’s appeal of the nationwide injunction the states secured in the Eastern District of Pennsylvania on January 14, the day the final rules were supposed to go into effect. The nationwide preliminary injunction stopped the federal government from implementing new regulations that authorize employers and universities to deny contraception coverage to employees, students and dependents by citing a religious or moral objection.
“The Trump Administration’s continued attacks on women’s health are dangerous, discriminatory, and above all illegal,” said Attorney General Herring. “Women deserve the freedom to make their own decisions when it comes to healthcare, especially reproductive health, and I will continue to join my colleagues in fighting to protect affordable contraception coverage for Virginia women, and women across the country.”
Since the Affordable Care Act (ACA) was enacted in 2010, most employers who provide health insurance coverage to their employees have been required to include coverage for contraception, at no cost to their employees. As a result of the ACA, more than 55 million women in the United States have access to a range of FDA-approved methods of birth control, including the longest-acting and most effective ones, with no out-of-pocket costs. The ACA also included an accommodation process by which employees whose employers had religious objections to contraception could nevertheless obtain seamless alternative coverage for contraception—seamless coverage that is not provided under the new regulations’ expanded exemptions.
For millions of women the contraception coverage rule has reduced their healthcare costs, helped address medical conditions, and allowed them to make their own decisions about when and if to have children. Before the contraception coverage rule, birth control accounted for 30-44% of a woman’s out-of-pocket healthcare costs. Now, 62 million women across the country, including 1.6 million women in Virginia, have access to contraception without a co-pay, saving an average of $255 per year for oral pill contraceptives, and the percentage of women who have a co-pay for contraception has fallen from more than 20% to less than 4%.
In the brief, the attorneys general argue that the new regulations threaten the health, wellbeing, and the economic stability of hundreds of thousands of residents, as well as the economies of the states themselves, by depriving the residents of contraception coverage. By rolling back access to contraception, the new regulations will force states to spend millions of dollars to provide their residents with state-funded replacement contraceptive care and services and for healthcare associated with a rise in unintended pregnancies.
The attorneys general further argue that the District Court “acted well within its discretion in awarding” the preliminary national injunction because the regulations threaten to harm thousands of women across the country. The brief notes that even the federal government admits that far more women and their families will be harmed than what the federal government had previously estimated in October 2017.
“Access to contraception advances educational opportunity, workplace equality, and financial empowerment for women; improves the health of women and children; and reduces healthcare-related costs for individuals, families, and the States,” the state attorneys general write in both briefs.
According to the brief, contraceptive equity laws that exist in some states may mitigate the harm caused by the new regulations in those states but will not eliminate it, because of the large percentage of women who work for employers that have self-funded plans that, by federal law, are exempt from state regulation.
In January, Attorney General Herring and his colleagues filed two amicus briefs in the District Courts for the Eastern District of Pennsylvania and theNorthern District of California asking the courts to halt the roll back of the contraceptive coverage mandate and to issue a preliminary nationwide injunction of the final regulations. The following week, the Pennsylvania district court issued the nationwide preliminary injunction at issue in this appeal, and the California federal district court issued a preliminary injunction covering the states that are plaintiffs in that action.
Joining Attorney General Herring on today’s brief are the attorney generals of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, and Washington, as well as the District of Columbia.
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